of McAirlaid's Vliesstoffe GmbH (version 01.01.2009)
I. General conditions
1. Our General Sales Conditions apply exclusively for all agreements, deliveries and services. Any modifications apply only in exceptional cases and require our written agreement. Our General Sales Conditions apply also if we execute the delivery to the customer in the knowledge of the customer's deviating conditions. Our General Sales Conditions apply also for all future transactions with the customer.
2. Our General Sales Conditions only apply for business persons in terms of Section 310 (1) BGB (German Civil Code).
II. Order and acceptance of order
1. Unless stipulated otherwise in the order confirmation, our prices are subject to change. 2. The supply agreement comes into effect with our acceptance of the order or by executing the delivery.
III. Price, payment, exclusion of offsetting and objection, default consequences
1. Unless stipulated otherwise in the order confirmation, our prices apply "ex works" or ex warehouse" excluding freight, customs, fees and taxes; these shall be invoiced separately, if applicable.
2. We reserve the right to adjust prices appropriately if cost decreases or increases occur after the conclusion of the agreement, particularly due to tariff agreements or price changes for material, particularly changes to raw material prices. Upon request, we shall verify these to the customer.
3. Statutory Value Added Tax is not included in our prices; it is specified in the invoice at its legal amount on the day of invoicing. The customer is the debtor of any import turnover tax that may be due.
4. Payments by bill of exchange are not accepted.
5. Unless specified otherwise in the order confirmation, the deduction of a discount is only permissible upon separate written agreement.
6. Unless stated otherwise in the order confirmation, the purchase price is due and payable net (without deductions) within 30 days from date of invoice. The statutory regulations regarding the consequences of default of payment apply.
7. The customer is only entitled to off-setting if his counter claims are legally determined, uncontested or accepted by us. He is furthermore entitled to a right of retention in as far as his counter claim is based on the same contractual relationship.
8. If the customer is fully or partially in arrears with the payment of a due invoice, or if we become aware of circumstances, which make our claim against the customer appear to be at risk, we are entitled to make any further delivery dependent on advance payment or security for the purchase price. In this case, all outstanding invoices are due immediately, we are entitled to prohibit the customer from reselling the goods delivered by us and to take possession of or secure the goods still in the customer's possession. The customer is obliged to provide us with information about the available stock of our goods still at his disposal and to allow us to check his warehouse. The retrieval of the delivered item by us does not constitute a withdrawal from the agreement. Upon retrieval of the goods, we are entitled to dispose of them at our discretion. The revenue from the utilisation less appropriate liquidation costs is to be off-set against the customer's obligations.
IV. Deliveries and transfer of risk
1. Delivery and dispatch are ex works or ex warehouse at the risk of the customer, also in the event of a carriage-paid delivery. The risk is transferred to the customer upon loading or, if pick-up has been agreed upon, at the provision of the goods.
2. We are entitled to make partial deliveries.
3. If we have guaranteed a delivery date or a delivery period and/or if we are in default with the delivery, the customer shall grant us a reasonable period of grace in writing with the threat of refusal. Once this grace period has expired and despatch of the goods has not occured, the customer is entitled to withdraw from the Agreement with respect of those quantities that have not been reported as ready for dispatch by the expiration of the grace period.
V. Complaints, warranty, liability
1. Prerequisite for any warranty rights of the customer is his proper fulfilment of all inspection and complaint obligations owed according to Section 377 HGB (German Commercial Code). According to this, the goods have to be inspected for defects immediately upon delivery; defects must be reported immediately if necessary. If the customer violates these inspection and complaint obligations, the goods shall be deemed approved.
2. We supply our customers with Airlaid-composite products. These are produced from natural cellulose fibre. The moisture level of the cellulose fibres can vary. During the production process, the pulp fibres can also be exposed to different climatic and thermal conditions. This can lead to tolerances of up to +/- 5 percent in terms of quantities and weight. Such tolerances are customary and reasonable. The customer cannot object to such tolerances.
3. In the event of justified complaints, we shall be entitled to choose between remedy of defects or replacement delivery. If we are not in a position to remedy the defect or provide a replacement delivery within a reasonable period of time, or if the rectification of the defect or replacement delivery fails, the customer is entitled, at his discretion, to withdraw from the agreement or to demand a reduction in the purchase price.
4. If the customer chooses to withdraw from the agreement after subsequent fulfilment has failed, he is not entitled to any additional claims for damages due to the defect.
5. If the customer chooses compensation for damages after subsequent fulfilment has failed, the goods shall remain with him if this is reasonable for the customer. The compensation is limited to the difference between the purchase price and the value of the defect goods. This does not apply if we have caused the violation of agreement fraudulently.
6. Claims for damages due to a defect are excluded if we are only charged with a slightly negligent breach of insignificant contractual obligations. For the remainder, our liability for slightly negligent breaches of duty is limited to the foreseeable, contract-typical, direct average damage according to the type of goods. These limitations of liability also apply to slightly negligent breaches of duty by our representatives or vicarious agents. They do not apply in case of injury to life, body or health attributable to us.
7. The period of limitation is 1 year calculated from the date of transfer of risk.
8. Goods offered by us as special items are delivered under exclusion of any warranty. Rectification of defects, subsequent delivery, withdrawal, reduction or claims for damages are excluded.
9. The limitation of liability according to paragraph 6 shall also include all claims for damages outside the liability for defects, irrespective of the legal nature of the claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage.
10. If our liability for compensation is excluded or limited, this also applies in terms of the personal liability for compensation with respect to our employees, representatives and vicarious agents.
VI. Reservation of title
1. We reserve right to the goods delivered by us until all claims against the customer to which we are entitled from the business relationship, including future claims, have been settled. This also applies if individual or all claims were included in a current account and if the balance has been drawn and accepted.
2. The customer is only entitled to resell the reserved goods in the proper course of business against the assignation of all claims arising from the resale against his customers or third parties. The customer hereby assigns all claims in the full amount arising from the resale to us. Until revocation, the customer is authorised to collect claims assigned to us. This does not affect our authority to collect the claims ourselves; however, we undertake not to collect the claims as long as the customer properly fulfils his payment and other obligations. We are entitled to demand that the customer discloses to us the assigned claims and their debtors, provides all details necessary for the collection, supplies the respective documentation and informs the debtors (third parties) of the assignation.
3. Any treatment or processing of the reserved goods is carried out by the customer on our behalf without any obligations arising for us. In the event of processing, combining, mixing or blending of the reserved goods with other goods not owned by us, we are entitled to the hereby created co-ownership of the new item at the ratio of the value of the reserved goods to the remaining processed goods at the time of the processing, combining, mixing or blending. If the customer obtains sole ownership of the new item, we agree with the customer that the customer shall grant us co-ownership of the new item at the ratio of the value of the processed or combined, mixed or blended reserved goods and shall keep it safe for us free of charge. 4. The customer is obligated to inform us immediately in writing of any seizures or other interventions by third parties in the reserved goods. 5. The customer is obliged to adequately insure the reserved goods at his expense against damages by fire, water and theft. 6. Upon demand of the purchaser, we are obligated to release the securities owed to the extent when the realisable value of the securities exceeds the claims of our security by more than 10 %; the choice of the securities to be released is at our discretion.
Returns shall only be accepted if they are notified in writing in advance, a delivery note is enclosed and the goods are in a properly packed and undamaged condition.
VIII. Place of fulfilment, place of jurisdiction and choice of law
1. The contractual relationship with the customer is exclusively subject to the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is also excluded if the customer's registered office is abroad.
2. Place of fulfilment is our registered office unless otherwise determined in the order confirmation.
3. Place of jurisdiction for all disputes arising from or in connection with this Agreement is 48143 Münster, Federal Republic of Germany. However, we are also entitled to sue the customer at the court of his residential address.
IX. Final conditions
Should individual conditions of these terms and conditions of sale be or become wholly or partially invalid or contain a loophole, this shall not affect the validity of the remaining conditions. These General Sales Conditions can be viewed on our website; upon your request, we are happy to post to you the English version at any time. Please notify us accordingly.